The opinion of the court was delivered by: PIERCE
The United States claims that Pan American Mail Line has violated Section 18 of the Shipping Act, as amended, 46 U.S.C. § 817(b)(3)
by collecting an amount different from that stated in its tariff on file with the Federal Maritime Commission (hereinafter "the Commission"). The government seeks imposition of a civil penalty pursuant to 46 U.S.C. § 817(b)(6)
and it has moved for summary judgment. The parties have submitted affidavits and briefs, including supplemental briefs at the Court's request.
Rule 56 of the F.R. Civ. P. provides that summary judgment may be granted only upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." It is clear that great care must be exercised in considering a motion for summary judgment and where there is any doubt as to the facts of a case, the motion must be denied. Dolgow v. Anderson, 438 F.2d 825 (2d Cir. 1971); Doehler Metal Furniture Co. v. United States, 149 F.2d 130 (2d Cir. 1945).
The parties do not dispute certain facts in this case. Defendant has admitted in its answer that during the period between July 1, 1965 and July 27, 1966 it was a common carrier by water engaged in foreign commerce, that is, engaged in the transportation of cargo between United States Atlantic ports and Cristobal, Canal Zone; that at all relevant times it was a corporation organized and existing under the laws of a foreign nation; that it transacts business through an agent; and that it is located within this district and within the jurisdiction of this Court.
In addition, all are agreed that prior to July 1, 1965 defendant's tariff contained the following provision on "Original page No. 8B," effective between July 1, 1964 and June 2, 1965, and on "Supplement No. 1 to Original page No. 8B," effective between June 3, 1965 and June 30, 1965:
"Item 8 (continued) . . .
"All shipments from the following ports are subject to the charges specified below:
Handling -- $1.35 per 40 cu. ft. or 2,000 lbs. as freighted with the exception of: AUTOMOBILES -- $5.00 per unit.
Wharfage -- $.30 per 2,000 lbs. with the exception of AUTOMOBILES -- $1.00 per unit; TRUCKS -- $2.00 per unit.
Minimum Wharfage and Handling Charges are $.30 and $1.35 respectively."
As of July 1, 1965 this language was deleted by "1st Revised Page No. 8B." In the introductory portion of defendant's tariff, however, on page "FMC-F No. 3 Original page No. 2," the following provisions remained as of July 1, 1965:
"Item 1. Application of Rates. . "(b) . . . Any tollage, wharfage handling and/or unloading will be for account of the cargo."
Pan American filed a new tariff, effective on January 1, 1966, which was apparently designated "FMC -- No. 4." The above language appeared on page 4 of the new tariff. This same provision appeared again on the first revised page 4, effective June 3, 1966. It was deleted entirely from defendant's tariff by amendment ...